Are Congressional Wars Coming? Since Cheney Has Already Said He'll Ignore the Democratic Congress, It Seems Likely

This is the first of a three-part series by the author on Congressional oversight of the Bush Administration by the newly-elected Democratic Congress. - Ed.

During the 2006 campaign, which actually started in 2005, President Bush and Vice President Cheney said remarkably ugly things about Congressional Democrats, describing the possibility that they would take control of Congress as an unmitigated disaster, or worse. For example, as the campaign came to a close, President Bush all but accused Democrats of committing treason: "However they put it, the Democrat approach in Iraq comes down to this: The terrorists win and America loses," Bush said.

It was Cheney who led the GOP's attack on Democrats to prevent them from winning control of Congress. In fact, the Vice President was more active in fighting to keep Republican control of Congress, than he was in seeking his own reelection in 2004.
The Washington Post
reported that Cheney was the star attraction at some 111 GOP fundraisers for the 2006 midterm campaign, in addition to actively campaigning for a slew of Republican candidates. As he traveled the country, Cheney accused Democrats of being soft on terrorism; he named names, and he called people names, as he warned of the end of civilization if Democrats won control of Congress.

Voters' Message to Democrats in the 2006 Election

With this election, however, the Bush/Cheney fearmongering failed. Voters did not buy it. Bush and Cheney had cried wolf too often. Accordingly, voters took control of Congress away from the Republicans on November 7, 2006. This cannot be read as representing voters' enthusiasm for the Democrats, so much as it represented voters' opposition to - and in some cases, disgust with - the Republicans.

I believe Democrats have read that message correctly. Speaker-designate Nancy Pelosi told reporters that Americans wanted a "new direction," which includes a return to "bipartisan civility." For that reason, Democrats say that, when they take charge of the new 110th Congress in January, they plan to end the excessive partisanship, with its accompanying paralysis, that has characterized Republican rule.

But ending partisanship, clearly, was not the only message voters sought to send on November 7. Many Democrats ran, and won, on the claim that the Bush Administration was operating unchecked by Congress; that Congressional Republicans refused to exercise oversight of the administration. Early in the campaign, in March 2006, the Democratic Senatorial Campaign Committee (DSCC), along with the Democratic Congressional Campaign Committee (DCCC), released a joint report to provide Democratic candidates with information showing that the Republican Congress had failed to fulfill its oversight responsibilities. With solid justification, the report labeled Republicans a mere "rubber stamp" for the Bush/Cheney White House, and this theme resonated through many House and Senate races. It was a significant factor in many Democrats' winning their races.

There is, however, an inherent conflict between the two dominant messages voters sent the new Democratic Congress. Civility and oversight are not the best of friends. Indeed, I seriously doubt it is possible for Democrats to bring civility to Congress, while at the same time fulfilling their pledge to meet Congress' responsibility, as an institution, to check and balance the Administration. It is not that Democrats want to imitate Republican investigative techniques, which are well-known for their aggressiveness; it is, rather, that when Republicans respond to the Democrats' efforts by employing aggression and incivility, the Democrats' efforts will inevitably be tainted by the Republicans' incivility.

President Bush is publicly claiming that he is ready to act in a bipartisan manner with respect to the new Democratic Congress, as if he has heard the message voters sent. But his olive branch to the Democratic Congressional Leadership strikes me as more like a fly-swatter, which he is waving about, hoping to keep them at bay as long as possible. I say that because, as of now, Cheney is busy passing the word to the troops that it will be full speed ahead, as if nothing happened in November. In the distance, I can already hear the Republican attack dogs howling, getting ready for the coming Congressional war.

Cheney's Defiant Posture Is Understandable: He Is the Likely Target Of Congressional Oversight

No wonder Dick Cheney worked so hard to prevent the Democrats from winning control of Congress, and is working so hard to push ahead now as if they never had. The DSCC-DCCC report shows that the Democratic Congress has good reason to be interested in Cheney, for he is at the center of the highly controversial activities that the Republican Congress conspicuously ignored.

For example, the report notes the following damning facts: The Republicans refused to investigate the mishandling of the intelligence leading to the war in Iraq. The GOP Congress ignored the fact that Cheney's office was involved in securing a $7 billion no-bid contract for Halliburton, which Cheney headed before becoming VP. The Republicans ignored Cheney's refusal to provide information about his energy task force, which developed policy for the Administration in secret while working with energy company executives. The Republicans refused to investigate the White House's outing of a covert CIA agent (Valerie Plame Wilson) in order to attack her husband, a critic of the Administration. And last, but very much not least, the Republican Congress has ignored the abuses (and torture) of detainees.

In short, Cheney is a key witness with respect to all these questionable - if not illegal -- activities.

Since the election, Cheney has made it clear that he has no interest in cooperating with the Democrats. He told ABC News host George Stephanopoulos he would not testify if subpoenaed. In addition, he told members of the Federalist Society, gathered in Washington for their national convention, that notwithstanding the election results, nothing had changed: The President was going to stay the course in Iraq, and continue sending conservative judicial nominees to the Senate for confirmation.

Not only is Cheney necessarily a key player, if Congress to is understand what has transpired in the Bush Administration during its first six years, but this fact puts Cheney's philosophy, not to mention his mission as Vice President, directly at odds with Congress' undertaking its Constitutional responsibility.

Cheney is a champion of a strong presidency. He believes - or at least his actions suggest he believes - that a strong president is a secretive president, and a secretive president tells Congress what he wishes to tell them, just as he tells them which laws he will or will not obey, particularly as Commander-in-Chief. With the help of a compliant GOP Congress, which evidenced no institutional pride, Cheney has had no problem killing all oversight efforts during the first six years of the Bush presidency. But now, with Democrats prepared to hold the Bush Administration accountable, Cheney does have problems - and they may be quite serious ones.

Still, Cheney's problems are nothing like the woes that Republicans inflicted on Democratic President Bill Clinton, during the Independent Counsel investigations and, ultimately, the impeachment proceeding. I do not believe that the Democrats will resort to such abuses for partisan purposes.

Democrats Are Not Likely To Adopt GOP Tactics

In many ways, Dick Cheney is to Congressional Democrats what Bill Clinton was to Congressional Republicans: An epitome of evil. Republicans saw Clinton as a threat to their "values"; Democrats see Cheney as a threat to their "liberty," if not to democratic government itself. Based on four decades of observing both parties, one of the conspicuous differences I've noted is that Republicans have no reservations about abusing the processes of governing. On the other hand, Democrats do.

Accordingly, when Democrats take control of Congress, they are not likely to repeat the flagrant partisan misuses of investigative powers that Republicans employed against Bill Clinton. The GOP's misuse of the Independent Counsel Act against the Clinton Administration killed that valuable but flawed post-Watergate statute, because Republicans feared they would be subjected to similar treatment. Moreover, the GOP's misuse of Congress' investigative powers during the Clinton years represented a low point in American history - exceeding even Congress' misguided attack on President Andrew Johnson for purely partisan (as well as racially discriminatory) reasons following the Civil War, which brought shame on the institution.

Recall that, when Republicans took control of Congress in 1994, two years into the Clinton Presidency, they launched an unprecedented number of investigations into every facet of the Clinton Administration. Indeed, they were still investigating Clinton when he was out of office, and George W. Bush was in the White House. Republicans literally bludgeoned Clinton with investigation.

Republicans' Investigations During the Clinton Years: Their Folly, and the Their High Cost

For example, Republicans held congressional hearings into alleged drug use by the White House staff; investments by the President and First Lady when he was Governor of Arkansas and they invested in a land development project known as Whitewater; the operations of the White House travel office; the death of White House deputy counsel Vince Foster; the referral of FBI files to the White House security office; the billing records of former associate attorney general Webster Hubbell; the foreign travel of Secretary of Energy Hazel O'Leary; and President Clinton's holding coffee klatsches with campaign contributors and inviting others to stay overnight at the White House, in the infamous Lincoln Bedroom.

And these were not passing investigations; to the contrary. For example, the Republican-controlled House devoted 140 hours to taking sworn testimony when investigating whether President Clinton had engaged in misconduct with respect to a Christmas-card fundraiser. Republicans worked mightily to criminalize Democratic political behavior, by using (and abusing) the Independent Counsel Act.

Republicans demanded independent counsel investigations of Henry Cisneros, Secretary of Housing and Urban Development for allegedly giving the FBI false information during his background check (Cisneros lied about his finances, but only to cover up an extramarital affair); Bruce Babbitt, for allegedly giving Congress misleading information about an Indian casino proposal; Alexis Herman, Secretary of Labor, for alleged improper campaign finance arrangements; Ron Brown, Secretary of Commerce, for alleged improprieties with respect to his personal finances; and Eli Segal, Director of AmeriCorps, for alleged conflicts of interest. And, of course, an Independent Counsel would investigate the President and First Lady regarding Whitewater, Vince Foster's death, the travel office, and the Paula Jones lawsuit, which revealed the president's sexual relationship with Monica Lewinsky.

Independent Counsel Ken Starr would become Congress's surrogate impeachment counsel, as the House voted to overturn the 1996 election, and the Senate wasted months doing what they could to tarnish President Clinton, but refusing to convict him of any impeachable offense. It was a donnybrook of the highest order.

Typical of the Congressional abuses of power during the Clinton presidency was the operation of the House Committee on Government Reform, which issued a staggering 1,052 subpoenas to investigate the Clinton Administration between 1997 and 2002.

By way of comparison, the committee has issued a paltry three subpoenas to the Bush Administration relating to the appalling handling of Hurricane Katrina - a far more serious matter and one where there are highly credible allegations of the Administration's incompetence before and after Katrina hit, which resulted in mass suffering and death. In sum, the Republican Congress has been invisible when it comes to oversight of the Bush Presidency.

Conservatively, I would estimate that the costs of Republican investigations of the Clinton Administration, which continued even after Clinton has left the White House, exceeded $200 million. It was clearly abusive, not to mention cruel. The Bush Administration is fortunate that the Independent Counsel Act has expired, and that Democrats do not play the game the way Republicans do.

What Should the Democrats Do If The Bush Administration Stonewalls Them?

Rumblings on Capitol Hill suggest that Republicans may literally be "out of control" as the minority party. Many Republicans in Congress are upset that they will lose their perks, and they want to punish the Democrats for winning. In addition, the White House believes its conservative base wants it to make life difficult for the Democrat Congress, so they will assist in doing just that.

The word on K Street is also that making life difficult for Congressional Democrats will help Republicans win the White House and Congress in 2008. As one well-connected Republican attorney in Washington told me: "We see a war coming on Capitol Hill." In fact, many Congressional Republicans believe they are better at being opponents than proponents, so they look forward to raising hell.

Since Democrats are going to encountering some major stonewalling, when they try to pursue oversight of the Bush Administration, this raises two key questions: What should the Democrats do in response to the stonewalling, and how should they do it?

Answering these questions will be the subject of my next column.

John W. Dean, a FindLaw columnist, is a former counsel to the president.